The case arose from the denial of Permanent Commission (PC) to women officers in the Indian Navy. In 2020, the Supreme Court had ruled in Union of India v. Lt. ...
No Acts & Articles mentioned in this case
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos 841- 843 of 2022
Cdr Amit Kumar Sharma etc .... Appellants
Versus
Union of India & Ors etc ....Respondents
WITH
Civil Appeal No 846 of 2022
(@ Civil Appeal Nos 845- 846 of 2022)
WITH
Civil Appeal No 2457/2022
WITH
Civil Appeal Nos 2059- 2060/2022
WITH
Civil Appeal No 2216/2022
WITH
Civil Appeal Nos 856- 858/2022
WITH
Civil Appeal No 855/2022
WITH
Civil Appeal Nos 852- 854/2022
2
WITH
Civil Appeal Nos 844/2022
WITH
Civil Appeal Nos 847- 851/2022
WITH
Civil Appeal No of 2022
(Diary No 20730/2022)
AND WITH
Civil Appeal No of 2022
(Diary No. 23503/2022)
3
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1. Leave to appeal under Section 31(1) of the Armed Forces Tribunal Act 2007 is
granted.
2. Delay condoned.
3. This batch of appeals arises from a judgment dated 3 January 2022 of the
Principal Bench of the Armed Forces Tribunal
1
. The AFT dismissed the applications
challenging the denial of Permanent Commission
2
in the Indian Navy. The principle
issue is whether the AFT could have adjudicated on the validity of the selection
proceedings when relevant material was disclosed only to the AFT in a sealed cover.
The Facts
4. On 26 September 2008, the Ministry of Defence notified that women Short
Service Commission
3
Officers would be eligible for grant of PC prospectively. In Union
of India v. Lieutenant Commander Annie Nagaraj
4
, the issue for consideration before
this court was whether women who were inducted in various branches of the Indian
Navy prior to 2008 were entitled to the grant of PC. By its judgment dated 17 March
2020, this Court observed, inter alia, that
5
:
(i) As a result of the policy decision of the Union Government dated 25
1
“AFT”
2
“PC”
3
“SSC”
4
(2020) 13 SCC 1
5
Paragraphs 109.5, 109.6 and 109.7 of the judgment in Annie Nagaraj.
4
February 1999, the terms and conditions of service of SSC Officers
including women with regard to the grant of PC were governed by
Regulation 203 of Chapter IV of Part III of the Naval Ceremonial,
Conditions of Service and Miscellaneous Regulations 1963
6
;
(ii) The stipulation in the policy letter dated 26 September 2008 making it
prospective and applicable only to specified branches/cadres of the Indian
Navy (Education, Law and Naval Construction) was not enforceable;
(iii) All SSC Officers in the Education, Law and Logistics cadres, who were
“presently in service” shall be considered for the grant of PCs;
(iv) The officers were entitled to the grant of PC in view of the policy letter of
the Union Government dated 25 February 1999 read with Regulation 203;
(v) SSC women officers in the batch of cases before the High Court and the
AFT who are “presently in service” shall be considered for the grant of PC
on the basis of the vacancy position as on the date of the judgment of the
Delhi High Court and the AFT or as it “presently stands”, whichever is
higher;
(vi) The applications of the serving officers for the grant of PC shall be
considered on the basis of the norms contained in Regulation 203, namely,
(a) availability of vacancies in the stablised cadre at the relevant time;
(b) determination of suitability;
(c) recommendation of the Chief of Naval Staff; and
6
“Regulations”
5
(d) empanelment shall be based on the inter-se merit evaluated on the
ACRs of the officers under consideration, subject to the availability of
vacancies.
5. There are three points in time, which were taken into consideration by the
authorities for the determination of vacancies, namely
(i) August 2015, when the judgment of the High Court in Annie Nagaraj
(supra) was pronounced;
(ii) September 2016, when the decision of the AFT in Commander Priya
Khurana v. Union of India
7
was pronounced; and
(iii) March 2020, when the decision of this Court in Annie Nagaraj (supra)
case was pronounced.
6. Following the above directions, the process for implementing the judgment was
carried out. The respondents worked out a total of 88 vacancies. 306 officers were
considered for PC against the 88 vacancies after which 80 of them were granted PC.
The second respondent (Integrated Headquarters of Ministry of Defence (Navy)) issued
a signal order releasing many SSC officers from service on the ground that they had not
obtained PC. The Signal order only notes the date of commissi on, date of r elease and
the Unit of the officer without any reference to the process of selection that was
undertaken or the relative merit. Many of the SSC officers, both men and women, who
were not granted PC filed writ petitions before this Court chall enging the rejection of
their claim for PC. In the alternative, they sought directions for the grant of pension.
7
OA No 143 of 2016
6
7. By an order dated 24 August 2021, this Court dismissed the writ petitions on the
ground that the Court had already laid down the principles for granting PC in Annie
Nagaraj (supra) and Lt. Col. Nitisha v. Union of India
8
. It was observed that the
officers who were denied PC would assail the decision on the basis of individual facts
and thus, it would be necessary for them to claim their reliefs before the AFT. The
relevant observations are extracted below:
“12 The petitioners who are considered for the grant of PC and
were denied it would have to assail the decision not to grant
them PC on the basis of the individual facts in each case.
Bearing this in mind, it would be necessary for them to pursue
their remedies before the AFT where the facts of each case can
be scrutinized. If the petitioners were to succeed on their plea for
the grant of PC, the alternative claim for invoking the jurisdiction
under Article 142 would cease to have any practical significance.
It is only if the denial of PC is upheld that the alternate plea can
be pressed and this can be pursued after the decision of the
AFT, by following the remedies available under the statute.
Hence, on a considered view of the matter we are inclined not to
entertain the petitions under Article 32 on merits.”
(emphasis supplied)
8. The second respondent, in the written submissions before the AFT, filed in Cdr
AK Sharma v. Union of India
9
submitted that the vacancy calculation is more than an
exercise of simple mathematics and that the “minute details of vacancy calculation
cannot be put in the open domain for the obvious reasons. Accordingly, this Hon’ble
Tribunal will be provided with a detailed note with respect to vacancy calculation in a
sealed envelope
(as and when sought).” It was also submitted that the fairness of the
selection process “would be amply clear from the selection Board Proceedings which
would be provided to this Hon’ble Tribunal for perusal in the sealed cover, if need for
the same arises.” Similarly, in the counter affidavit filed in Commander Barsha
8
(2021) SCCOnLine SC 261
9
O.A 2167 of 2021
7
Agrawal v. Union of India
10
, it was submitted:
“Accordingly, this Hon’ble Tribunal has been provided with a
detailed note with respect to vacancy calculation in a sealed
envelope”.
(emphasis supplied)
9. The AFT by the impugned judgment dated 3 January 2022 disposed the cases
transferred to the AFT pursuant to the order of this Court along with cases where the
denial of PC was challenged before the AFT. The impugned judgment of the AFT in
paragraph 54 indicates that the respondents submitted :
(i) All the files connected with the Selection Board convened in December 2020;
(ii) The previous Selection Boards held for the grant of PC;
(iii) The management of SSC Officers; and
(iv) The dossiers containing the confidential reports of 32 applicants before the AFT.
10. In addition to the above, the AFT noted in paragraph 81 that on a perusal of
“various records and files submitted by the respondents”, the second respondent had
considered the following issues:
(a) Selection Boards held prior to 2020;
(b) Baseline for consideration and batches to be considered;
(c) Categorization of officers for consideration;
(d) Determination of vacancies;
(e) Suitability criteria;
(f) Inter-se merit criteria;
10
OA 2008 of 2021
8
(g) Conduct of Board and results; and
(h) Analysis of the Selection Board Proceedings.
11. In paragraph 99 of the judgment, it is observed that the Board conducted its
proceedings on 18 December 2020 according to the criteria approved in the Approach
paper. Paragraph 37 of the impugned judgment extracts the selection procedure that
was adopted by Indian Navy. Paragraph 37 of the judgment is extracted below:
“37. The Counsel then took us through the criteria for selection
and said that marks were apportioned as given below to work out
inter-se merit. He added that there was no ‘Value Judgment’
mark as was applicable in promotion boards. He also stated that
no one has been rejected based on medical criteria and all had
been recommended by the CNS. He further added that the merit
list was computer generated based on the criteria mentioned
below; and that out of a total of 381 officers, 80 had been
granted PC (41 women and 39 male officers). The counsel then
elaborated on the factors and their weightage.
Ser Factor Weightage Unsuitability Criteria
(a) ACR Merit 90%
(b) SLt Seniority 04%
(c) War 02% Officer should not have been recommended G
and below any time in the last five CR cycles held
on record
(d) Peer 02% Officer should not have been recommended G
and below any time in the last five CR cycles held
on record
(e) Recommendation for
PC
02% Officer should not have been graded ‘No’ in
recommendation for PC thrice or more in the last
five CRs
12. On perusing the records disclosed in a sealed cover, the AFT recorded the status
of the remaining applicants as follows:
9
Ser OA
Case Ref
Applicants Current
Status
Relief
sought
Merit 1
st
Consideration
Merit 2
nd
Consideration
Disposal
1 OA 433/ 2016
SLP (C) 834-
36/ 2021
Lt Cdr Ravinder
Pal Singh Engineering/NC
Batch- 2005
Service- 16
Retired
Released
31.12.2020
PC/Pension 5/6 Low merit No vacancy Was
considered only for first
look. To be
given
second look
2 OA 435/2016
SLP (C) 834-
36/2021
Lt Cdr Amit
Khajuria Engineering /
NC
Batch-2005
Service -16
Retired
Released
31.12.2020
PC/Pension 6/6 Low merit No vacancy Was
considered only for first
look. To be
given
second look
3 OA 436/2016
SLP (C) 834-
36/2021
Lt Cdr Manish
Kumar Singh Engineering/
NC
Batch- 2005
Service- 16
Retired
Released
31.12.2020
PC/ Pension 3/6 Low merit No vacancy Was
considered only for first
look. To be
given
second look
4 OA 1203/2017
WP 1471/2020
(Tfr-Rajkumar)
Cdr Saroj Singh
Exec/gs
Batch- 2003
Service- 18
Released
31.12.2020
Rel stayed in service
PC 5/10 Low
merit
4/9 Low merit Not eligible
for PC
Already
Granted
Pension
5 OA 838/2018
WP 1471/2020
(Tfr-Rajkumar)
Cdr Swati
Bhatia
Education/ GS
Batch -2004
Service- 17
Released
31.12.2020
Rel stayed
In service
PC 12/14 Low
merit
18/20 Low
merit
Not eligible
for PC
Already Granted
Pension
6 OA 840/2018
WP 1478/2020
(Tfr-
Rajkumar)
Cdr Vijayeta
Education GS
Batch-2004
Service – 17
Released
31.12.2020
Rel stayed
In service
PC 8/14 Low
merit
14/20 Low
merit
Not eligible
for PC
Already Granted
Pension
7 OA 1959/2018
Old matter
Cdr Kumar
Dhiraj
Batch- 2007
Service- 14
Released
9.01.2019
Retired
PC Not
considered
since not in
service on
date of
judgment
Not
considered
since not in
service on
date of
judgment
Not eligible
for PC and
not granted
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
8 OA 2118/2018
WP 1478/2020
(Tfr-
Rajkumar)
Cdr Mandip
Kaur Exec/Lgd
Batch -2005
Service- 16
Released
31.12.2020
Rel stayed
in service
PC 7/9 Low merit
NR for PC in ACR
10/12 Low
merit NR for PC ON acr
Not eligible
for PC
Already Granted
Pension
10
9 OA 816/2019
WP 1269/2020
(Tfr-Rajkumar)
Cdr YK Singh
Education/GS
Batch- 2005
Service – 16
Released
31.12.2020
Rel stayed in service
PC/Pension 15/20
Low merit
10/13 Low
merit
Not eligible
for PC and not granted
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
10 OA 1361/2021
Fresh case
Cdr Sarita
Nagayach
Exec/ Lgs
Batch- 2007
Service -14
Released
05.08.2021
Retired
PC/Pension 07/15
Low merit
NR for PC in
ACR
13/20
Low merit
NR for PC in ACR
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
11 OA 1454/2021
WP 646/2021
Dismissed as withdrawn by
applicant.
Cdr Sandeep
Singh
Exec/Lgs
Batch-2007
Service – 14
Rel Order
24.03.2021
Released
06.08.2021
PC/Pension 4/15
Low merit
8/20
Low merit
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
12 OA 1964/2021
WP 1471/2020
(Tfr-Rajkuamr)
Cdr Pooja
Rajput
Exec/Lgs
Batch- 2002
Service- 19
Released
31.12.2020
Rel stayed
in service
PC 5/7
Low merit
7/14
Low merit
Not eligible
for PC
Already
granted
pension
13 OA 2008/2021
WP 703/2021
(Tfr-Rajkumar)
Cdr Barsha
Agarwal
& 03 Ors
Education/GS
Batch- 2007
Service- 14
Rel Order
05.08.2020
Released
05.08.2021
PC/Pension
/
Permit to service till
20 yrs (Ref
BP/ N case)
9/11
Low merit
7/9
Low merit
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
14 Joint with Ser
13
Cdr Shweta
Kapoor
Education/ GS
Batch- 2007
Service- 14
Rel Order
5.8.2020
Released
05.08.2021
PC/Pension
/
Permit to service till
20 yrs (Ref
BP/ N case)
11/11
Low merit
09/09
Low merit
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
11
judgment
15 Joint with Ser
13
Cdr Sapna C
Lanjewar
Education/GS
Batch- 2007
Service- 14
Rel Order
05.08.2020
Released
05.08.2021
PC/Pension
/
Permit to
service till
20 yrs (Ref
BP/ N case)
7/11
Low merit
05/09
Low merit
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
16 Joint with Ser
13
Cdr SS Naik
Education/GS
Batch- 2007
Service-14
Rel Order
05.08.2020
Released
05.08.2021
PC/Pension
/
Permit to
service till
20 yrs (Ref
BP/ N case)
8/11
Low merit
06/09
Low merit
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
17 OA 2064/2021
WP 1471/2020
(Tfr-Rajkumar)
Cdr Annie
Nagaraja
Education/GS
Batch- 1999
Service- 22
Released
31.12.2020
Rel
stayed- SC
order
24.08.2020
In service
PC
Reframe
guidelines
of
15.10.2020?
5/8
NR for PC in ACR
6/9
NR for PC in ACR
Not eligible
for PC
Already
granted
pension
18 OA 2065/2021
WP
1471/2020(Tfr-
Rajkumar)
Lt Cdr Barkha
Rathore
Exec/Lgs
Batch- 2003
Service- 18
Released
31.12.2020
Rel stayed
In service
PC
Reframe
guidelines
of
15.10.2020?
10/10
Low merit
NR for PC in
ACR
9/9
Low merit NR
for PC in
ACR
Not eligible
for PC
Already granted
pension
19 OA 2066/2021
WP 1471/2020
(Tfr-Rajkumar)
Cdr Urmila
Bhat
Education/Met
Batch- 1999
Service- 22
Released
31.12.2020
Rel stayed
In service
PC 7/8
Low merit NR
for PC in
ACR
8/9
Low merit NR
for PC in
ACR
Not eligible
for PC
Already
granted
pension
20 OA 2067/2021
WP 507/2021
(Tfr-Rajkumar)
Cdr Puneet Pal
Kaur
Exec/Lgs
Batch-2006
Service- 14
Released
12.05.2021
Rel stayed
in service
PC/Pension 5/12
Low merit
6/15
Low merit
Not eligible
for PC and not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
21 OA 2068/2021
WP 1471/2020
Cdr Shruti
Dhawan
Education/GS
Released
31.12.2020
PC 6/8
NR for PC in
ACR
7/9 NR for
PC in ACR
Not eligible
for PC
Already
12
13. On an examinat ion of the Board p roceedings, the AFT observed that there were
no mala fides in the parameters which were prescribed or the procedure adopted. It
was also observed that the officers were not granted PC because of their comparative
merit against limited vacancies and, in certain cases, the officers were not found
suitable. The relevant observations are extracted below:
“110. Having heard all parties and examined various records, it is
well established that the IN has formulated a proper procedure
(Tfr-Rajkumar) Batch- 1999
Service- 22
Rel stayed
in service
granted
pension
22 OA 2069/2021
Fresh case
Cdr Bhanu
Pratap Singh
Exec/Lgs
Batch- 2007
Service- 14
Released
31.12.2020
Retired
PC/ Pension 10/15
Low merit NR
for PC in
ACR
15/20
Low merit NR
for PC in
ACR
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
23 OA 2167/2021
(Tfr-RB
Mumbai)
WP No. 1269/2020
(Tfr-Rajkumar)
Cdr Amit
Kumar Sharma
Education/GS
Batch- 2003
Service- 18
Released
31.12.2020
Rel stayed
in service
PC/Pension 2/3 NR for
PC in ACR
9/14
Low merit NR for PC in
ACR
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
24 OA 2168/2021
(Tfr-RB
Mumbai) Old
matter,
transferred
from AFT
(RB0 Mumbai
Lt Cdr Yogita
Rani
Education/GS
Batch- 2003
Service- 18
Released
31.12.2020
PC/ Pension 3/3
Low merit
14/14
Low merit
Not eligible
for PC
Already
granted
pension
25 OA 2169/2021
(OA 105/2017
RB Mumbai)
WP 1269/2020
(Tfr-Rajkumar)
Cdr
PS Soodan
Education/ GS
Batch- 2004
Service- 17
Released
31.12.2020
Rel stayed
In service
PC/ Pension
Permit to
serve till 20
yrs (Ref
BP/N case)
13/14
Low merit NR
for PC in
ACR
19/20
Low merit NR
for PC in
ACR
Not eligible
for PC and
not grated
pension
being
inadmissible
under Para
96(x) and
(xi) of the
judgment
13
with suitable parameters, and has applied it uniformly to all
eligible SSCOs, both men and women, of all affected
Branches/Cadres in their consideration for grant of PC. We find
no mala fide in the parameters laid down or the procedure
adopted. No gender discrimination has been observed in the
Selection Board held in Dec 2020 and those held prior to the
decision of the Hon’ble Supreme Court in Annie Nagaraj (supra).
[…]
121. The merit position and status of the rest of the applicants
are given below. The inputs on recommendations for PC; Peer
and War Report entries have all been verified from the CRs. It is
seen from the records that the applicants have not been granted
PC only because their comparative merit against limited vacancy
and in certain cases, not being found suitable as per the laid
down criteria.”
14. The decision of the AFT has led to the institution of twelve Civil Appeals before
this Court. Twenty-six officers of the Indian Navy are appellants before this Court in the
Civil Appeals. Of these twenty six officers, thirteen are still in service pursuant to
interim orders. The remaining thirteen officers are out of service since varying dates in
2020, 2021 and 2022. Apart from the twenty six officers who are appellants before this
Court in the twelve civil appeals, eight officers have filed IAs for intervention. Seven out
of eight officers are protected by interim orders while the tenure of the eighth officer
(Commander Navneet Sharma) is to end in the month of December 2022.
15. Notice was issued in this batch of Civil Appeals on 31 January 2022. The
grievance of the appellants is that the sealed cover procedure, which was followed by
the AFT, has resulted in substantial prejudice.
The Submissions
16. Mr Huzefa A Ahmadi and Mr C U Singh, senior counsel appearing on behalf of
14
the appellants together with the other counsel - Ms Kamini Jaiswal, Ms Haripriya
Padmanabhan and Ms Puja Dhar have submitted that the AFT, in the course of its
decision, has extensively relied upon material which was submitted by the Naval
Authorities in a sealed cover. It has been urged that this material was never disclosed
to the appellants and if the material had been disclosed to them, they would have been
in a position to demonstrate that much of the data which has been relied upon is
seriously in dispute and is not reflective of the correct position. Mr. R.
Balasubramaniam, senior counsel appearing on behalf of the respondent, submitted
that it is not as if the respondents voluntarily chose to place the data in a sealed cover
and the files which were produced were on the directions of the AFT.
17. During the course of hearing, three principal submissions have been urged by
Mr. Huzefa A Ahmadi, senior counsel:
(i) In its decision in Annie Nagaraj (supra), this Court directed that the highest
number of vacancies were to be considered in determining the claims of the
SSC officers for the grant of PC but this has not been done;
(ii) Several batches have been clubbed together as a consequence of which
vacancies have not been considered batch- wise and inter se merit has
been skewed; and
(iii) Consideration for the grant of PC was effected on the basis of ACRs which
were written casually at a time when the officers concerned were not
eligible for the grant of PC as observed in a subsequent decision of this
Court (albeit in the case of the Army) in Nitisha (supra).
15
18. While formulating the objections to the findings of the AFT on merits, it has been
submitted by the counsel for the appellants that:
(i) The respondents have made no distinction between officers who were
inducted prior to 2008 and those inducted after 2008;
(ii) Data submitted by the Navy shows that vacancies at the material time were
not properly calculated;
(iii) There is sufficient data to indicate that many more vacancies exist in most
cadres than what is depicted in the impugned order;
(iv) The adoption of the 60:40 ratio (PC: SSC Officers) based on the AV Singh
Committee report is flawed since various other aspects of the report are yet
to be implemented by the Naval Authorities including the disbursal of
monetary benefits;
(v) The computation of yearly vacancies has proceeded on an arbitrary basis of
15 years’ distribution;
(vi) The methodology of dividing the total number of vacancies by 15 is arbitrary;
(vii) The chart which has been set out in paragraph 95 of AFT’s decision shows
that as many as 14 batches were considered together; and
(viii) The grievances of individual officers have not been adjudicated. For
instance, in the case of Commanders Annie Nagaraj and Amit Sharma,
though they were recommended for the grant of PC and would fall within the
existing vacancies, they have been denied PC on the ground that they were
not recommended.
16
19. On the other hand, Mr R Balasubramaniam, senior counsel appearing on behalf
of the respondents made the following submissions:
(i) While computing the vacancies, the Naval Authorities have correctly borne in
mind:
(a) The overall cadre structure of the Indian Navy;
(b) The policies which have been consistently followed; and
(c) The pattern of future inductions and retirements; and the need to maintain a
youthful profile in the Indian Navy and a balanced cadre structure.
(ii) Grant of PC is governed by Regulation 203 according to which the availability of
vacancies should be in the stabilised cadre;
(iii) While the stabilised cadre normally comprises only of government sanctioned
posts in the permanent cadre, in the spirit of the judgment of this Court,
temporary vacancies and Training Drafting Leave Reserve (TDLR) vacancies
were also added to the stabilised cadre;
(iv) The vacancies of the stabilised cadre were worked out with reference to August
2015, September 2016 and March 2020;
(v) The ratio of 60:40 (PC:SSC) has been approved by the Government of India on
3 November 2008 based on the AV Singh Committee report;
(vi) Based on the above, the deficiencies in each stream were divided by a 15 year
cycle which is the difference between the life of a PC Officer and SSC Officer in
service;
(vii) The deficiencies in manning strength cannot be given to any particular
17
batch or a few batches because of the policy of the Navy to have a balanced
cadre structure, a youthful profile and a proper induction/retirement pattern in the
long run;
(viii) The vacancies assigned to each batch worked out in terms of the above
model provided the maximum vacancies as on March 2020, the date of the
judgment of this Court;
(ix) Pursuant to the directions given by the AFT, the Navy carried out a fresh
exercise and allotted seven more vacancies to the Naval Construction Cadre
and seven officers were approved for the grant of PC;
(x) In regard to the clubbing of batches, each SSC Officer was given two ‘looks’ (the
first and the second ‘look’) pursuant to consistent practice. The first look is with
officers of the preceding batch, who were not granted PC in their first look and
the second look is with the available next fresh batch. Hence, each batch was
given consideration separately and it would not be correct to postulate that 14
batches of the Logistics Cadre were clubbed together. The distribution of
vacancies per batch on the basis of a 15 year cycle is justified;
(xi) The manner of writing ACRs is not erroneous. The judgment in Nitisha (supra)
pertained to the Indian Army which is distinguishable since :
(a) Unlike the Indian Army where male officers were being granted PC, in the case
of the Indian Navy neither men nor women officers were granted PC;
(b) The ACRs written by officers in the last five years preceding the conduct of the
Board were taken into consideration which had a specific column on whether or
not a recommendation was being made for PC, since 2015; and
18
(c) If an officer has not been recommended for PC in three or more ACRs, it would
be a disqualification and hence an officer would not be eligible for grant of PC,
even if higher in merit.
20. The second respondent in the written submissions before this Court submitted
that (i) it is a norm for the Board proceedings to only be provided to the AFT in a sealed
cover; (ii) the AFT on a perusal of the proceedings of the S election Board as well as
confidential dossiers of the individual applicants found that the Navy had considered the
claims of the officers for PC based upon the parameters laid down by this Court in
Annie Nagaraja (supra).
The Analysis
21. The AFT, inter alia , had to determine if (i) the Naval Authorities had correctly
computed the vacancies against which the claims of the SSC Officers would be
considered for the grant of PC; and (ii) the Selection Board considered the applications
for the grant of PC fairly. The judgment of the AFT indicates that in assessing the
validity of the exercise undertaken to determine vacancies and the fairness of the
selection process, it placed extensive reliance on material drawn from the data
emerging from the files which were submitted by the Union Government and the Naval
Authorities in a sealed cover. The judgment of AFT sets out in paragraph 92, a
summary of the cadre-wise strength and vacancies to be considered for granting PC to
the affected SSC officers. In paragraphs 93 and 94, the AFT has set out, in a similar
manner, tabulated statements in regard to the utilisation of vacancies. This data did not
19
form the subject matter of deliberations before the AFT. In fact, the counter affidavits in
Commander Barsha Agrawa l (supra) and Commander AK Sharma (supra) indicate
that the data was submitted in the form of a sealed note .
22. Similarly, the B oard proceedings were not disclosed to the appellants . The
written submissions before this court and the submissions in Commander AK Sharma
(supra) before the AFT indicate that the Board proceedings were not disclosed to the
officers and were submitted to the AFT in a sealed cover. The AFT on a perusal of the
Board proceedings has observed that the second respondent had adopted proper
procedure and suitable parameters that it had uniformly applied. It was also observed
on a perusal of the documents that there was no gender bias and that the appellants’
applications for PC were rejected only because they were lower in inter se merit.
23. This Court in Annie Nagaraj (supra) had directed that the applications of the
serving officers for PC shall be considered on the basis of norms in Regulation 203 and
paragraph 4 of the implementation guidelines. The parameters that were directed to be
considered were: (i) availability of vacancies in stabilized cadre at the material time; (ii)
determination of suitability; and (iii) r ecommendation of the Chief of Naval Staff. In
terms of paragraph 4 of the implementation guidelines, the empanelment has to be
based on inter-se merit evaluated on the ACRs of the officers. The Tribunal in
paragraph 105 of the judgment observed that on a perusal of record it was evident that
the Indian Navy had considered the SSC officers for PC based on the parameters laid
down in Annie Nagaraj (supra). However, the material that has been relied on to arrive
at the finding that there was no infirmity in the process has not been disclosed to the
appellants. The AFT observed that the weightage to the individual parameters in the
selection process for PC is the same as it existed before the judgment of this Court in
20
Annie Nagaraj (supra). Even if the parameters for selection and the weightage of the
individual parameters have been in the public domain, there is no material on record to
determine if the selection has been made in accordance with the criteria. The AFT has
recorded that there are ‘no mala fides’ and ‘no gender bias’ in the selection process.
However, there is no material available to the appellants to challenge these findings
since the material was disclosed to the AFT in a sealed envelope. The orders grant ing
PC to other officers also did not contain any reasoning on the inter-se merit of the
applicants. The AFT on a perusal of the files submitted in a sealed cover recorded the
status of the applicants in a tabular format that has been extracted in the earlier part of
the judgment. However, the appellants were not privy to such information.
24. Material prejudice has been caused by the process which has been followed of
disclosing the information of vacancies and the board proceedings to the AFT in a
sealed cover. In Khudiram Das v. State of West Bengal
11
, this Court held that the test
for determining if material must be disclosed is whether in all ‘reasonable probability’,
the material would influence the decision of the authority. Ruling in the context of
preventive detention, a four-Judge Bench of this Court observed:
“15. Now, the proposition can hardly be disputed that if there
is before the District Magistrate material against the detenu
which is of a highly damaging character and having nexus
and relevancy with the object of detention, and proximity
with the time when the subjective satisfaction forming the
basis of the detention order was arrived at, it would be
legitimate for the Court to infer that such material must have
influenced the District Magistrate in arriving at his
subjective satisfaction and in such a case the Court would
refuse to accept the bald statement of the District Magistrate
that he did not take such material into account and excluded
it from consideration. It is elementary that the human mind
does not function in compartments. When it receives impressions
from different sources, it is the totality of the impressions which
11
(1975) 2 SCC 81
21
goes into the making of the decision and it is not possible to
analyse and dissect the impressions and predicate which
impressions went into the making of the decision and which did
not. Nor is it an easy exercise to erase the impression created by
particular circumstances so as to exclude the influence of such
impression in the decision making process. Therefore, in a case
where the material before the District Magistrate is of a character
which would in all reasonable probability be likely to influence the
decision of any reasonable human being, the Court would be
most reluctant to accept the ipse dixit of the District Magistrate
that he was not so influenced and a fortiori, if such material is not
disclosed to the detenu, the order of detention would be vitiated,
both on the ground that all the basic facts and materials which
influenced the subjective satisfaction of the District Magistrate
were not communicated to the detenu as also on the ground that
the detenu was denied an opportunity of making an effective
representation against the order of detention.”
(emphasis supplied)
25. In T. Takano v. Securities and Exchange Board of India
12
, a two- Judge
Bench of this Court held that the all relevant information
must be disclosed. In this case,
the issue for consideration before this Court was whether an investigation report under
Regulation 9 of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices)
Regulations 2003 must be disclosed to the person to whom a notice to show cause is
issued. SEBI had not disclosed the investigation report. It was the contention of SEBI
that it had not relied on the investigation report to issue the show cause notice. The two
Judge Bench observed that disclosure of information to the parties to the adjudication
serves three purposes: (i) Reliability: The possession of information by both the parties
can aid the courts in determining the truth of the contentions; (ii) Fair Trial: There is a
legitimate expectation that parties are provided all the information for them to effectively
participate in the proceedings; (iii) Transparency and accountability: It is necessary that
the adjudication is not opaque but transparent. Transparency aids in establishing
accountability. The observations on disclosure of information and its impact on
12
Civil Appeal Nos. 487-488 of 2022
22
transparency are extracted below:
“22. […] Keeping a party bereft of the information that influenced
the decision of an authority undertaking an adjudicatory function
also undermines the transparency of the judicial process. It
denies the concerned party and the public at large the ability to
effectively scruitinise the decisions of the authority since it
creates an information asymmetry.”
23. The purpose of disclosure of information is not merely
individualistic, that is to prevent errors in the verdict but is also
towards fulfilling the larger institutional purpose of fair trial and
transparency. Since the purpose of disclosure of information
targets both the outcome (reliability) and the process (fair trial
and transparency), it would be insufficient if only the material
relied on is disclosed. Such a rule of disclosure, only holds nexus
to the outcome and not the process. Therefore, as a default rule,
all relevant material must be disclosed.
26. This court observed that the right to disclosure is not absolute. Portions that
involve information on third- parties or confidential information on the securities market
may be withheld by SEBI. The court directed that the Board is duty bound to disclose
parts of the investigative report that concern the specific allegations that have been
levelled in the show cause notice. However, the court also observed that it does not
entitle a person to whom the notice is issued to receive unrelated sensitive information.
The court held that it must first be prima facie established by SEBI that the disclosure of
the information would affect third party rights. Once a prima facie case of sensitivity is
established , the onus would then shift to the appellant to prove that the information is
necessary to defend his case appropriately. The conclusions are extracted below:
51 […]
(v) The right to disclosure is not absolute. The disclosure
of information may affect other third- party interests and the
stability and orderly functioning of the securities market. The
respondent should prima facie establish that the disclosure of the
report would affect third- party rights and the stability and orderly
functioning of the securities market. The onus then shifts to the
appellant to prove that the information is necessary to defend his
23
case appropriately; and
(vi) Where some portions of the enquiry report involve
information on third parties or confidential information on the
securities market, the respondent cannot for that reason assert a
privilege against disclosing any part of the report. The
respondents can withhold disclosure of those sections of the
report which deal with third- party personal information and
strategic information bearing upon the stable and orderly
functioning of the securities market.
52 The Board shall be duty-bound to provide copies of such
parts of the report which concern the specific allegations which
have been levelled against the appellant in the notice to show
cause. However, this does not entitle the appellant to receive
sensitive information regarding third parties and unrelated
transactions that may form part of the investigation report.”
27. The elementary principle of law is that all material which is relied upon by either
party in the course of a judicial proceeding must be disclosed. Even if the adjudicating
authority does not rely on the material while arriving at a finding, information that is
relevant to the dispute, which would with ‘reasonable probability’ influence the decision
of the authority must be disclosed. A one- sided submission of material which forms the
subject matter of adjudication to the exclusion of the other party causes a serious
violation of natural justice. In the present case, this has resulted in grave prejudice to
officers whose careers are directly affected as a consequence.
28. The non- disclosure of relevant material to the affected party and its disclosure in
a sealed- cover to the adjudicating authority (in this case the AFT) sets a dangerous
precedent. The disclosure of relevant material to the adjudicating authority in a sealed
cover makes the process of adjudication vague and opaque. The disclosure in a sealed
cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to
effectively challenge an order since the adjudication of issues has proceeded on the
basis of unshared material provided in a sealed cover . The adjudicating authority while
24
relying on material furnished in the sealed cover arrives at a finding which is then
effectively placed beyond the reach of challenge. S econdly , it perpetuates a culture of
opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating
authority. It also tilts the balance of power in a litigation in favour of a dominant party
which has control over information. Most often than not this is the state. A judicial order
accompanied by r easons is the hallmark of the justice system. It espouses the rule of
law. However, the sealed cover practice places the process by which the decision is
arrived beyond scrutiny. The sealed cover procedure affects the functioning of the
justice delivery system both at an individual case- to case level and at an institutional
level. However, this is not to say that all information must be disclosed in the public.
Illustratively, sensitive information affecting the privacy of individuals such as the
identity of a sexual harassment victim cannot be disclosed. The measure of non-
disclosure of sensitive information in exceptional circumstances must be proportionate
to the purpose that the non- disclosure seeks to serve. The exceptions should not,
however, become the norm.
29. During the course of the hearing, it has clearly emerged before this Court that
material which was relied upon by the AFT for determining the vacancies which were
available and for assessing as to whether they were utilise d correctly has not been
disclosed to the appellants. Similarly, the Board proceedings that were relied upon by
AFT to determine if the selection for PC was fair have not been disclosed to the
appellants. We are cognizant of the wide range of sensitive information in the records
of board proceedings. The respondents are not required to disclose the deliberations on
the selection for PC within the closed Board setting. While the AFT on a perusal of the
25
records concluded that there was no gender bias or mala fides in the grant of PC, it
must be borne in mind that the officers do not possess the material to challenge this
observation. The respondents while protecting the confidentiality of the proceedings of
the Board must disclose the position in merit of the appellants vis-à-vis the parameters
and their weightage devised by the respondents .
30. We permitted counsel to address the Court briefly on the nature of objections
which arise on the basis of the data as disclosed. Counsel for the appellants submitted
that instead of a remand to AFT, this Court may carry out the exercise. We are not
inclined to do so for two reasons. Firstly, a primary fact-finding role is entrusted to the
AFT under the Armed Forces Tribunal Act 2007. While exercising its appellate
jurisdiction, it would be appropriate if this Court has the benefit of a considered view of
the AFT. To decide the issues for the first time in appeal, as a matter of first
impression, would not be appropriate. Secondly , the issues which arise before the AFT
primarily turn upon the determination of vacancies, the manner of utilising them and the
fairness of the selection process. This is an exercise which had to be carried out by the
Naval Authorities while implementing the judgment of this Court. The correctness of
that determination fell for consideration before the AFT. In arriving at its conclusion
upholding the determination, the AFT has not had the benefit of considering the
objections of the appellants to the manner in which the exercise was carried out by the
authorities. The objections of the appellants noted above would have been set out
before the AFT if the material was disclosed to the appellants. The failure to disclose
relevant material has caused substantial prejudice to the appellants. This case
exposes the danger of following a sealed cover procedure.
26
31. For the above reasons we are of the view that a remand to the AFT would be
necessitated. We are conscious of the fact that the AFT carried out a painstaking
exercise while disposing of the OAs but there has been a clear breach of the principles
of natural justice. We are of the considered opinion that the AFT should be directed to
reconsider the entire matter afresh.
32. We accordingly allow the appeals and set aside the impugned judgment of the
AFT. The OAs corresponding to the appeals which are filed before this Court are
restored for fresh adjudication by the AFT. During the pendency of these proceedings,
as already noted, some of the officers in this batch of appeals including some
interveners have continued in service as a result of the protective orders operating in
their favour while the tenure of one officer is to end in December 2022. We direct that
the officers who are protected by interim orders of this Court shall continue to have the
benefit of those orders pending the disposal of the proceedings before the AFT and
thereafter for a period of eight weeks from the date of the decision of the AFT should it
become necessary for them to assail the judgment before this Court in appeal. The
officer whose tenure is to end in December 2022 shall also be entitled to the benefit of
the same protection.
33. We request the AFT to dispose of the OAs which have been restored to the file of
the AFT expeditiously and preferably by the end of February 2023.
27
34. Pending applications, if any, including applications for impleadment/intervention,
stand disposed of.
.…………...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[Hima Kohli]
New Delhi;
October 20, 2022
-GKA-
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